IN THE HIGH COURT OF SOUTH AFRICA Not Reportable

[EASTERN CAPE LOCAL DIVISION, MTHATHA]

CASE NO: 1499/14

Heard on: 27/03/2015

Delivered on: 23/04/2015

In the matter between:

THE CHRISTIAN CATHOLIC APOSTOLIC

CHURCH IN ZION Applicant

and

LUBABALO LEONARD HLAMANDLANA 1st Respondent

AMOS MKE 2nd Respondent

ARTHUR MATWA 3rd Respondent

MANYANZELA MANCINCI NOMKHATSHULE 4th Respondent

JUDGMENT

NHLANGULELA ADJP:

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[1] The principles governing an application for contempt of court, be it in

facie curiae or ex facie curiae, are set out in the case of Fakie NO CC11 Systems

(Pty) Ltd 2006 (4) SA 326 (SCA) as follows at 344, para [42]:

“(a) The civil contempt procedure is a valuable and

important mechanism for securing compliance with

court orders, and survives constitutional scrunity in the

form of a motion court application adapted to

constitutional requirements.

(b) The respondent in such proceedings is not an ‘accused

person’, but is entitled to analogous protections as are

appropriate to motion proceedings.

(c) In particular, the applicant must prove the requisites of

contempt (the order; service or notice; non-compliance;

and wilfulness and mala fides) beyond reasonable

doubt.

(d) But, once the applicant has proved the order, service or

notice, and non-compliance, the respondent bears an

evidential burden in relation to wilfulness and mala

fides: Should the respondent fail to advance evidence

that establishes a reasonable doubt as to whether non-

compliance was wilful and mala fide, contempt will

have been established beyond reasonable doubt.

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(e) A declarator and other appropriate remedies remain

available to a civil applicant on proof on a balance of

probabilities.”

[2] It is the applicant’s case that the respondents are in contempt of the court

order that was issued by this Court on 15 November 2013, and confirmed on 20

February 2014. The terms of the court order read:

“1.1 That the respondents be and are hereby ordered to

return forthwith to the Applicant the church building

at Balasi Mission, Siphaqeni Administrative Area,

Flagstaff, all the property that belongs to the

Applicant that has been removed from such church

premises by the Respondents;

1.2 That the Respondents be and hereby interdicted and

restrained from holding themselves out as leaders of

the Applicant in any capacity;

1.3 That the Respondents be and hereby ordered to hand

over to the Applicant’s current leadership under

Archbishop Wellington Mboyi all stationery,

documents and any other property of any description

whatsoever that belongs to the Applicant and that is

in their possession;

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1.4 That the Respondents be and are hereby interdicted

and restrained from interfering in any way

whatsoever with the current leadership of the

Applicant under Archbishop Wellington Mboyi in

the execution of their duties as leaders of the

Applicant;

1.5 That the 6th Respondent is ordered to remove

forthwith the names of the 4th and 5th Respondents as

signatories to the Applicant’s Account No.

287639215, and to replace such names with the

names that will be furnished to it by the Applicant’s

current leadership that is led by Archbishop

Wellington Mboyi;

1.6 That the Respondents be and are hereby interdicted

and restrained from holding any church meetings or

gatherings under the auspices of the Applicant or

utilising the name of the Applicant, without express

authorisation by the current leadership of the church

under the leadership of Archbishop Wellington

Mboyi.”

[3] The facts which are common cause are that the members of the applicant

church (the Church) are divided into at least two factions which have been

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wrestling for the control of the church for quite sometime. Whereas the first

factions is led by Mr Wellington Mboyi, the second is led by Mr Lubabalo

Leonard Hlamandlana. The second faction consists of the respondents,

including Mr Hlamandlana and many others.

[4] The Church is possessed of a number of assets, movable and immovable,

such as the buildings situated at Hlwahlwazi No. 1 and Hlwahlwazi No. 2;

Twazi No. 1 and Twazi No. 2; Marhasha Location; Mthontsasa Location and

Balasi Mission. These assets are used by the Church as sites for the purposes of

worshipping the name of God. They are all located within the district of

Flagstaff. The site at Hlwahlwazi is the mission station and Headquarters of the

Church.

[5] The Church is a huge organisation. The court orders under question

illustrate the on-going tension that exists between the members of the Church.

The members have been involved in numerous court cases brought before this

Court under different case numbers.

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[6] As a matter of law, the court order dated 15 November 2013 is a valid

court order that is binding upon the parties to whom it is directed. The

respondents cannot be heard to be contending otherwise despite the rumblings

of protest raised by them on affidavit. It also bears mentioning that the order

shall remain so valid and enforceable upon those to whom it is directed until

such time as it has been set aside by a court of competent authority. Breach of a

court order constitutes a punishable criminal offence to the extent that it violates

the dignity, repute or authority of the court in enforcing its orders see S v Beyers

1968 (3) SA 70 (A) at 80C-G.

[7] During arguments Mr Nonkonyana, counsel for the respondents, raised a

point of lis pendens, contending that the enforceability of the court orders of 15

November 2013 and 20 February 2014 were suspended on 24 April 2014 when

the respondents filed an application for leave to appeal against those orders as

well as against the order of Majiki J issued on 21 February 2014 under Case No.

233/2012 setting aside the answering affidavit of the respondents on the basis

that it was an irregular step. The problem with this contention is that in our law

of civil procedure, Rule 49 (1)(b) , an application for leave to appeal a judgment

or order has to be brought within 15 days after the date of issue thereof,

provided that such period may be extended by the court on application. The

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respondents filed the application for leave after approximately two months. But

when that happened the application for condonation as envisaged in the proviso

to Rule 49 (1)(b) was not brought. For these reasons I am bound to accept the

submission advanced by Mr Zilwa, counsel for the applicant, that the application

for leave does not comply with Rule 49 (1)(b). It can safely be regarded as pro-

non scripto. Therefore, both the orders dated 15 November 2013 and 20

February 2014 as well as that of Majiki J were not suspended by the filing of the

application for leave on 24 April 2014. Consequently, the point of law that the

main application is pending determination on appeal must fail. The argument

that there is pending application proceedings under Case No. 1383/2014 in

which the leadership of Mr Mboyi is impugned must also fail because that mater

is as yet to be decided. This decision brings one to deal with further the points

of law raised on behalf of the respondents. I deal with those points below; but

not necessarily in the order in which they were presented on the answering

affidavit.

[8] The second point of law is that the Church was not properly represented

when the main application was brought because Mr Mboyi, the deponent to the

founding affidavit was not the Arch-Bishop of the Church who was clothed with

constitutional power to sue on behalf of the Church. Evidently, Mr Mboyi

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deposed to an affidavit in his capacity as such by a resolution of the Church to

sue. For present purposes it can be accepted that the claim made by Mr Mboyi

in the founding affidavit that he is the right person to sue is correct because the

claim was not contradicted.

[9] The third point of law raised is that Mr Mboyi must be unsuited for this

application because he failed to exhaust internal remedies for resolving disputes

within the Church in contravention of clause 18 of the Church Constitution. In

my view this point must also fail because the contempt of court proceedings

concerns an attack against the reputation, honour and dignity of the Court; Mr

Mboyi being merely the beneficiary to the court orders that have been violated.

[10] I will deal with the fourth point of law, raised that the application must be

dismissed on the ground that Mr Mboyi should not have brought an application

well knowing of the existence of disputes of fact on affidavits, in the course of

analysing the facts of the case.

[11] The way has now been paved for me to decide the merits of the complaint

that the respondents have conducted themselves in contempt of the court orders

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dated 15 February 2013 and 20 February 2014. The gist of the applicant’s

complaint is encapsulated in paragraph 15 of the founding affidavit, which I

paraphrase in the following terms:

1. The respondents have not given the applicant exclusive use of its assets in

that:

(a) they continue to use the buildings in Hlwahlwazi No. 1 and

Hlwahlwazi No. 2.

(b) they continue to use the buildings in Twazi No. 1 and Twazi No. 2.

(c) they continue to use the buildings in Marhashu Location.

(d) they continue to hold meetings in church buildings on Sundays.

(e) they continue to occupy the Headquarters of the applicant.

2. The respondents have not returned to the applicant about 50 chairs, two

tables, sponge mattresses, one water tank, stamps and stationery.

3. The respondents are using applicant’s stationery and stamps to make and

sell baptismal certificates for many non-existent children.

4. On 09 February 2014 the second respondent chased away one Jackson

Vusiwe, a bona fide member of the Church, from Hlwahlwazi No. 2

church building of the applicant.

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5. On 23 February 2014 and at Twazi and Marhashu stations, the

respondents held a church service known as “Inkonzo yoqoqo”, which

proceedings were filmed and recorded in DVD.

6. On 18 April 2014 the respondents held their Passover Church Service at

Hlwahlwazi No. 2 Church building where the Seven Utterances (Amazwi

Asixhenxe) by Jesus on the Cross were preached.

7. On 19 April 2014 the respondents convened a meeting in a church

building of the applicant and made resolutions suspending Mr Mboyi, as

the leader, and the members of his group. Pursuant thereto, Mr Mboyi

and the members of his group were dismissed as the members of the

Church.

8. The respondents continue to hold themselves out as leaders of the

applicant Church.

[12] The contention advanced on behalf of the applicant is that the actions of

the respondents, individually and as a collective, as listed in the preceding

paragraph were taken in breach of the court orders.

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[13] Mr Hlamandlana, and the co-respodents by extension, did not deal

pertinently with the allegations made on behalf of the applicant in paragraph 15

of the founding affidavit. Instead he raised the issues of leadership dispute and

the meeting of the members of his group that took place on 19 April 2014 that

decided to dismiss Mr Mboyi and his group from leadership positions and

membership of the Church. He raised issues concerning the efforts being made

by his group to effect regime change that are pursued in court proceedings under

Case No. 1383/2014. With respect, these issues do not address the serious

breaches which have been levelled against the respondents in paragraph 15 as

aforesaid. The evidence that Mr Mboyi and the members of his group took the

keys of the Balase Mission buildings from Chief Ndabankulu, invaded the

mission buildings, assaulted a guard and destroyed the buildings in May 2014 is

denied by Mr Mboyi in the replying affidavit. I have observed that the

allegations made by Mr Hlamandlana do not directly implicate any one or more

persons of Mr Mboyi’s group. Neither did he seek confirmation of these

allegations on affidavit from the guard and Chief Ndabankulu. These

allegations do not constitute bona fide disputes of fact on a material matter, but

they are sweeping statements which carry highly diminished evidential value in

my view. They fall to be rejected out of hand without recourse to oral evidence.

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[14] I accept the version of events as outlined in paragraph 15 of the founding

affidavit.

[15] The fact that the respondents were served with the court order dated 15

November 2013 is evidenced by the Sheriff’s returns of service. It is clear from

the returns that the nature and exigencies of the court order were explained and

understood by each of the respondents. The submission by Mr Zilwa that the

respondents were legally represented in court on 15 November 2013 and 20

February 2014, as so confirmed by the contents of those orders, re-inforces the

conclusion that not only were the respondents served but they knew very well

what the orders enjoined them to do. It must follow, therefore, that the defences

raised that the respondents did not know about the existence of the orders nor

appreciate the import thereof by reason that they were not present in court, they

thought that the orders served upon them were the summons or a warrant of

execution and that their lawyers confused the orders for some unrelated

interlocutory application(s) cannot make sense.

[16] I find that the order of court made on 15 November 2013 was served upon

the first, third and fourth respondents on 22 November 2013; and served upon

the second respondent on 06 December 2013. And they have been shown

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beyond a reasonable doubt to have wilfully and with mala fides elected not to

comply with the orders.

[17] The respondent’s defence that the resolution of the Church conference,

held on 19 April 2014, ex-communicating Mr Mboyi and substituting him and

his group with the respondents faction requires to be given priority over the

court orders must be given a short shrift. Such a resolution cannot prevail over

the court order that was lawfully issued. The applicable rule is that all orders of

court, whether correctly or incorrectly granted, have to be obeyed until they are

properly set aside. See: Di Bona v Di Bona & Another 1993 (2) SA 682 (C) at

688C-E.

[18] I must now deal with the relief sought by the applicant that the

respondents be committed for the contempt of court and be given such

punishment as to the Court seems meet. The punishment called for includes

committing the respondents to jail. In other words, the applicant’s relief is not

limited to a declarator and the enforcement of the court orders. It would appear

from the case of East London Local Transitional Council v MEC For Health,

Eastern Cape, And Others 2001 (3) SA 1133 (Ck) that a criminal sanction, or its

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threat, may be applied to compel compliance with a court order that has been

disobeyed. In that case Ebrahim J said the following at 1140, para. [28]:

“The essential object of contempt proceedings is to obtain

the imposition of a penalty in order to vindicate the

Court’s honour consequent upon the disregard of its order

as well as to compel performance in accordance with the

order. The proceedings may also be brought for the sole

purpose of punishing the respondent. (Herbestein and Van

Winsen The Civil Practice of the Supreme Court of South

Africa (Dendy, ed) 4th ed at 817. See, further, Protea

Holdings Ltd v Wriwt and Another 1978 (3) SA 865 (W)

at 878B; Sparks v Sparks 1998 (4) SA 714 (W) at 725H-I;

Bruckner v Bruckner and Another [1999] 3 B All SA 544

(C) at 549i-j and 550a.) When the object is primarily to

compel performance of the court’s order the period of

imprisonment imposed by the Court as a punishment is

often suspended pending fulfilment by the defaulter of his

or her obligations. (Herbestein and Van Winsen (op cit at

817) and the cases cited there.)”

[19] In this case there is a need to advance the objects of contempt of court

proceedings, punishment and enforcement because the respondents very clearly

wilfully and mala fide neglected the orders of court and later on, as an excuse

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for not complying therewith, they held a meeting on 19 April 2014 to pass

resolutions the effect of which it was to emasculate the provisions of the orders.

Such conduct cannot be tolerated. An award of a punitive order of costs is

warranted as a mark of the Court’s displeasure with the conduct of the

respondents.

[20] Now that the respondents have been found to be in contempt of court, the

next step is the fixing of sentence taking into account that strictly speaking this

Court, a civil court, is not a criminal court where the respondents would have

been brought to court on summons and a charge sheet/indictment setting out the

rights of the respondents in terms of s 35 of the Constitution Act, 1996.

[21] The cases of Uncedo Taxi Service Association v Maninjwa And Others

1998 (3) SA 417 (E); and Uncedo Taxi Service Association v Mtwa And Others

1999 (2) SA 495 (E) provide helpful tools for fashioning an appropriate order in

this matter. In the first Uncedo case Pickering J makes a relevant remark on the

mis-conception that the civil court is a suitable forum at which to punish a

contemnor criminally. He said the following at 424E-G:

“In my view, the right contained in s 35 (3) (a) is amply

afforded to an alleged offender in summary proceedings

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instituted by way of notice of motion. The founding

affidavit of the applicant will of necessity set out in some

detail the averments in support of the application for

committal and will specify the respects in which the

offender allegedly committed contempt of Court ex facie

curiae. The fact that these averments are contained in a

notice of motion and affidavit and not in a charge-sheet

seems to me to be of no consequence whatsoever. If

anything, the offender would in the normal course of

events be afforded a great deal more particularly

concerning the alleged contempt in an affidavit than in a

charge-sheet. A wide range of conduct may fall within the

ambit of contempt of Court ex facie curiae. (See Milton

(op cit at 177 et seq).) It does not follow therefrom,

however, that the ‘charge’ against the offender cannot be

formulated with sufficient clarity and certainty in the

affidavits filed in support of the summary procedure.

Once the details of the alleged contempt have been so

specified, the requirement entrenched in s 35 (3)(a) will

have been met (cf S v Lavhengwa [1996] (2) SACR 453

(W)] (supra 484h-j)).”

[22] Pickering J expanded his remarks as follows at 429C-D:

“… it is clear, in my view, that the fact that contempt

proceedings are brought summarily by way of notice of

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motion does not mean that they cannot be conducted fairly

in consonance with the provisions of s 35 (3) of the

Constitution Act. As in R v Cohn (supra), it will be the

responsibility of the Court hearing the matter to ensure

that the procedure adopted complies with the principles of

fundamental justice measured against the yardstick of the

provisions of s 35 (3).”

[23] I did not hear Mr Nonkonyana to be protesting deprivation of the

respondents’ protected rights under ss 35 of the Constitution Act.

[24] In the second Uncedo case, supra, Mbenenge AJ had the occasion to deal

with the issue of penalty to be imposed in circumstances identical to those of the

present case, and on the premise that the papers placed before him sufficiently

disclosed a prolonged and substantial breach of the court order by respondents.

The learned Judge went on to impose a sentence of payment of R1 000,00 fine

or, in default of payment, a term of 2 months imprisonment to be served. In

doing so the learned Judge applied the dictum of Nestadt J in Protea Holdings

Ltd v Wriwt And Another 1978 (3) SA 865 (W) when the following was stated at

871H:

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“It is vital to the administration of justice that those

affected by Court orders obey them. Our Courts cannot

tolerate disregard of its orders. Accordingly, it seems to

me that I would be failing in my duty if I did not impose a

punishment which takes into account the serious nature of

this type of offence.”

And at 872 B:

“I must, however, bear in mind that the Court is loath to

restrict the personal liberty of the individual in matters of

this kind (see Buckle The Civil Practice of the

Magistrates’ Courts in South Africa 6th ed at 88) and that,

if a period of imprisonment in this type of case is imposed,

it is usually or often suspended (Herbstein and Van

Winsen (supra at 583); Hunt South African Criminal Law

and Procedure vol III at 201).”

[25] The correctness of the approach to contempt of court proceedings by our

division in both Uncedo cases as aforementioned received the imprimatur of the

Supreme Court of Appeal in the case of Fakie, supra. That said this Court is at

large to sentence the respondents in the manner that is appropriate and duly

guided by the contents of the affidavits that have been placed before me.

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[26] I take into account the relevant factors as stated on affidavits without

repeating them in this judgment. Those factors include the circumstances of the

respondents that they are Church members, but who have shown unwarranted

disdain towards the orders issued against them and aggravated by the fact that

they have not taken a single step towards complying with the orders for a period

spanning two years.

[27] In the result, I hope that the order to be made will meet the exigencies of

the peculiar facts of this matter. It shall be the following:

1. The Respondents be and are hereby declared to be in

breach and in contempt of the Court order granted by

the Honourable Mr Justice Nhlangulela in Case No.

233/2012 on 15 November 2013 as confirmed by the

order of the Honourable Mr Justice Hinana AJ on 20

February 2014.

2. The Respondents are each sentenced to undergo three

months imprisonment, which is suspended for a

period of five years on condition that the respondents

are not convicted of contempt of court committed

during the period of suspension.

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3. The Respondents to pay costs of this application on

attorney and client scale jointly and severally, the one

paying, the other to be absolved from liability.

____________________________________

Z. M. NHLANGULELA

ACTING DEPUTY JUDGE PRESIDENT

Counsel for the applicant : Adv. P.H.S. Zilwa SC

Instructed by : Linyani & Somacala Inc

FLAGSTAFF.

Counsel for the respondent : Adv. M. Nonkonyana

Instructed by : Mpumelelo Notununu & Associates

MTHATHA.

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